Fiscal note on I-1185 stands, judge rules

OLYMPIA -- The fiscal note on the latest initiative requiring a supermajority in the Legislature for tax increases will remain in the voters pamphlet, even though it is different from a nearly identical initiative that passed in 2010, a judge ruled today.

That might not have much effect in the upcoming election, but could be a point of contention in next year's Legislature if Initative 1185 passes, sponsor Tim Eyman said

The fiscal note prepared by the Office of Financial Management for Initiative 1185 -- requiring a two-thirds legislative approval of any tax increase and a legislative vote on fee increases -- says passage may cost the state between $22 million and $33 million in lost toll revenues in 2017 and some other costs in other agency fees.

Eyman challenged that assessment, arguing that I-1185 merely continues the initiative voters passed in 2010, so it doesn't change anything. Calling the fiscal note a "gross injustice" stemming from "a complete lack of accountability," Eyman, who is not an attorney, represented the initiative's sponsors in a hearing on a request to have the fiscal note removed or altered.

I-1185 has the same ballot title as I-1053, he told Thurston County Superior Court James Dixon. It should have the same fiscal note, which in 2010 said I-1053 had no direct fiscal impact.

But since 2010, a pair of attorney general's opinions that looked at I-1053 concluded that the new law could require addiltional authorization by the Legislature for certain fees, Steve Dietrich, a deputy attorney general said. OFM had to take those opinions into account when it made its assumptions about the effect of continuing the law.

"This isn't the same situation they faced when they wrote (the fiscal note for) 1053," Dietrich said.

The Legislature might have to authorize new fees, but that doesn't cost anything, Eyman countered. At the very least, the voters pamphlet should contain a line that says the fiscal note is disputed by sponsors, he said.

Eyman's arguments were "largely political" not legal, Dietrich said. State law allows for someone to challenge the wording of an initiative's ballot title, but doesn't provide a mechanism for challenging the fiscal note for an initiative, he added.

"You simply don't have the power to order OFM to rewrite in the way he would like," said Dietrich told the judge.

Dixon agreed the order Eyman was seeking, a writ of mandamus, didn't apply to the case. If it had refused to write any fiscal note, that option might be available, but OFM has the discretion on how it prepares a fiscal note, he said. If it came up with conclusions that were "arbitrary and capricious", the court might also be able to step in.

"It is not arbitrary and capricious to review a law and come up with new conclusions," Dixon said.

After the hearing, Eyman said he didn't know how much effect the fiscal note will have on voters, and many probably won't study it. "I think voters have seen this issue before, so they're pretty well-educated on it."

But politicians do pay attention to things like the fiscal note, and Eyman and other initiative supporters will raise the part of the analysis that talks about the Legislature needing to approve at any opportunity during the next session.

The campaign has no plans to spend money on ads to rebut the fiscal note, he said. But the court challenge was important for creating a record of the sponsors' objections, if questions about the fiscal impact come up in debates or interviews.